DOJ Files ADA Lawsuit Against State of Florida Alleging That It Segregates Disabled Children in Nursing Homes

The Department of Justice (DOJ) has filed suit against the State of Florida, alleging that the state is in violation of the Americans with Disabilities Act (ADA) by failing to ensure that institutionalized and at-risk disabled children receive services in the most integrated setting appropriate to their needs. The DOJ alleges that nearly 200 children with disabilities are currently institutionalized in nursing homes, when they could be better served in family homes or community settings. It also notes that a significant number of disabled children in Florida are at-risk for institutionalization.

Investigation

The DOJ began investigating Florida’s provision of services to disabled children under age 21 in 2011, including those with medically fragile or complex conditions. It visited the six nursing facilities in the state that housed the majority of institutionalized children. On September 4, 2012, the DOJ issued a letter of findings to the state Attorney General, recommending a number of remedial measures, including the recommendations that the state amend policies that lead to inappropriate denial of medical services and expand the slots available in its waiver programs. It warned that, should Florida not comply, it might be required to file suit.

Lawsuit

After months of good faith negotiations with the state, Florida altered some of its policies. However, due to ongoing violations, the DOJ determined that it was necessary to file suit. In its complaint, the DOJ alleges that Florida has limited the availability of community-based services by “(1) enacting policies and engaging in practices that have resulted in the denial or reduction of medically necessary services; (2) failing to provide sufficient reimbursement rates for in-home nursing services; (3) failing to ensure sufficient capacity in its HCBS waiver programs; and (4) failing to ensure there is sufficient capacity in non-institutional, out-of-home settings that are able to serve children with significant medical needs.”

The complaint refers to numerous instances in which disabled children received drastic reductions in home-based services when their conditions remained the same, essentially forcing their families to institutionalize them for safety and financial reasons. Although most institutionalized and at-risk children are eligible for Home and Community Based Services (HCBS) waiver programs, there is an enormous backlog. The waiting list for the HSBS program for individuals for developmental disabilities, for example, increased from 14,629 in July 2005 to nearly 22,000 in September 2012. The DOJ noted that institutionalized settings do not provide the type of age-appropriate stimulation that children required. For example, it described situations in which children were housed with elderly adults and, in one notable instance, a situation in which a teenage resident was wheeled to an activity area and placed with three infants and toddlers who were listening to nursery rhymes.

ADA

Title II of the ADA (42 U.S.C. sec. 12131 et seq.) prohibits discrimination by public entities against individuals with disabilities. Regulations require public entities to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities,” (28 C.F.R. sec. 35.130(d)). In Olmstead v L.C., the U.S. Supreme Court held that Title II prohibits the unjustified segregation of individuals with disabilities and required public entities to provide community-based services where they are appropriate, the affected persons do not oppose the treatment, and the services can be reasonably accommodated.